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NOTEBOOK: Des Moines attorney: CDC’s proposed order won’t halt all evictions

The order doesn’t ‘mean that landlords have to immediately dismiss evictions or that they can’t file them.’


A proposed order issued last week by the Centers for Disease Control and Prevention that would temporarily prohibit landlords from evicting tenants unable to pay rent likely won’t halt all evictions, nor will it immediately stop eviction hearings currently underway in courtrooms across Iowa and the nation, a Des Moines lawyer with expertise in landlord-tenant issues said.
The CDC issued the proposed order on Sept. 1. However, the order hasn’t yet been published, which means eviction cases being heard this week in Iowa’s small claims courts are moving forward. And while the CDC order was expected to be published on Sept. 4, tenants must provide signed documentation to their landlords, in the form of a declaration, before receiving protection under the order.
“As interpreted by most practitioners, the tenant has the burden to provide the landlord with a declaration,” said Jodie McDougal, an attorney with the Davis Brown Law Firm in Des Moines who also is chairperson of the firm’s landlord-tenant department.
However, many questions exist about the proposed order, McDougal said.
“Most practitioners believe that if the order goes into effect, it isn’t going to mean that landlords have to immediately dismiss evictions or that they can’t file them,” she said. “It will likely mean that landlords are going to follow the normal course, unless and until the tenant provides them with that declaration. But again, there is some uncertainty and landlords will have to see how the state courts handle evictions in light of the [proposed] order.”
The outbreak of the novel coronavirus has pushed millions of Americans into unemployment and into situations in which they can’t meet monthly rent obligations.
More than 83,000 people filed unemployment claims two weeks ago in Iowa. In addition, the state is experiencing a 40% increase in eviction cases compared with a year ago, Nick Smithberg, Iowa Legal Aid’s executive director, estimated this week. 
Two weeks ago, 520 eviction cases were filed in courthouses across the state, he said. In Polk County this week, hearings for 160 eviction cases were scheduled. Iowa Legal Aid was able to stave off about 24 of the cases by paying tenants’ back rent payments. Some of the money used to pay back rents came from $800,000 allocated this week by the Polk County Board of Supervisors from the $6.2 million it received through the federal CARES Act.
In 2018, there were 21.4 million apartment units in the United States, 159,417 of which were located in Iowa, according to the Washington, D.C.-based National Multifamily Housing Council. The data only includes apartment rentals, not other types of rental housing including single-family houses, duplexes and modular homes.
In its unpublished order, the CDC stated that renters who are evicted typically move into housing with other people or into shelters. Moving into a home of a friend or family member increases the risk of spreading the virus, the CDC stated. Evicted renters who move into shelters or other transient housing also are exposed to a higher risk of becoming infected because of the numerous shared spaces in the facilities, the CDC stated in its unpublished order.
The CDC order is broader than a federal moratorium that expired in late July, McDougal said. The previous moratorium, which was part of the CARES Act signed by President Donald Trump in late March, banned evictions and foreclosures of people who lived in properties that received some sort of government financial backing.
The new moratorium “affects all residential landlords and nonpayment of rent,” McDougal said. “It’s a much broader application.”
When the order goes into effect, it will prohibit the eviction of tenants unable to pay rent for COVID-19-related reasons. The moratorium does not relieve renters from paying back rent and it does not preclude landlords from charging late fees and penalties. The order also does not ban evictions because of criminal behavior by a tenant or because property was damaged.
Renters eligible for the moratorium must expect to make less than $99,000 this year ($198,000 if filing jointly), to seek federal housing aid, to become homeless if evicted, and have attempted to pay rent, the CDC order states. 
While the CDC has broad powers when it comes to ensuring the safety of the public’s health, questions are being raised about the legality of the order, McDougal said. “The question is whether [stopping the spread of the virus] really is a sufficient basis for the CDC to make a national eviction moratorium order.”
The order is in effect until Dec. 31.
It’s unclear what steps will be taken by Iowa judges when the CDC order goes into effect, McDougal said. Last spring, when Iowa issued its moratorium on evictions, cases already filed or scheduled for hearings were continued until after the eviction ban was lifted, she said. 
“We really don’t know what the courts will do – will they continue the hearings or dismiss the cases? We’ll have to wait and see,” McDougal said.
A spokesman for the Iowa Judicial Branch said judges were reviewing the CDC order and haven’t yet determined next steps.


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